R v Haupeakui [2020] TOSC 70; CR 96 of 2020 (14 September 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 96 of 2020
REX -v- TUPOU HAUPEAKUI

VERDICT

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Counsel:	Ms T. Kafa for the Prosecution Mr S. Tu'utafaiva for the Accused
Date of trial: Date of submissions: Date of verdict:	10 to 13 August 2020 Defence, 22 August 2020; Prosecution, 1 September 2020 14 September 2020

CONTENTS

THE CHARGES

1. The Accused is charged that on 27 October 2019, he committed on the Complainant:
   • (a) sodomy, contrary to s.136 of the Criminal Offences Act (“the Act”);
   • (b) common assault, contrary to s.112(a) of the Act by hitting her with a lug wrench; and
   • (c) domestic violence, contrary to ss 4(k), (b) (i) and 28 of the Family Protection Act, in that he abused the complainant beyond the reasonable expectations and acceptances of family and domestic life.
2. The Accused pleaded not guilty to all three charges.

THE EVIDENCE

3. The Crown called evidence from the complainant and three other witnesses. A number of documents were also tendered by consent. They comprised copies of text messages between the Complainant and the Accused as well as between the Complainant and the Accused’s wife, photographs of the Complainant showing bruising to her face, a copy of a report from Dr Kalo Lalahi of the Village Mission Clinic & Pharmacy dated 31 October 2019 and a report by Dr Maake Tupou, a specialist in the Obstetrics and Gynaecology unit at the Vaiola Hospital, dated 5 November 2019.

Complainant

4. The complainant, who is 24 years of age, gave evidence that she met and commenced a relationship with the Accused in about January 2019. At first, the relationship was good although it got to the point where she said she could not stand being in the relationship anymore because the Accused was married. Whenever she brought up his wife with the Accused, it normally led to arguments. At one stage she said that the Accused told her he would be separating from his wife and that they were filing for divorce. She said that gave her hope that she might have a future with the Accused.
5. She also gave evidence about being assaulted by the Accused prior to the date specified in the indictment. She recalled one particular occasion, although she did not when it occurred, when she had spoken to the Accused about wanting to end their relationship. She said the Accused got angry and took her to his bush allotment. He told her to get out of the vehicle and walk. She said he told her to take off his t-shirt that she was wearing. She was only left wearing her bra and tights. She got out of the car and walked. The Accused started following her. The Accused punched her and she fell down. He then pulled her by the hair and dragged her to the car and punched her again. She could not recall how the fight ended although the Accused returned her to her home. She did not have any thoughts of reporting the previous incidents to the police because she said that when she was young she had an incident involving her driving a car which had left her unconfident in dealing with the police since.
6. The Complainant said that during most of the relationship, she was afraid of the Accused. She said he stopped her from doing things like going to school.
7. A few months into their relationship, the Accused went to the Complainant's house one evening. She told him that they should end the relationship. She said the Accused became angry and told her to get into his car. She refused but he said he would scream out so that everyone would hear. She was embarrassed and so she got into the car. She was surprised when the Accused drove to his house and called his wife and mother to come out and meet the Complainant. She did not recall how the Accused introduced her but she believed that at that time the Accused’s wife and his mother knew that the Complainant was the Accused’s girlfriend. The Accused’s wife was known as ‘Effe’.
8. The Complainant said she got back into the car with the Accused and his wife. She felt embarrassed and guilty but couldn't do anything. She said that Effe, who was angry but didn't say anything, drove the car fast. They end up parking at an area in Sopu. The Accused said that his relationship with the Complainant was going to be over. The Complainant said that Effe then started talking about the Accused’s good attributes as if she was trying to make the Complainant more interested in the Accused so that they could continue their relationship. The Complainant said that Effe stated she loved the Accused but could not continue on. The Accused asked Effe to ask the Complainant to continue the relationship.
9. When asked whether Effe said why she wanted her husband and the Complainant to keep seeing each other, the Complainant said that Effe could see that the Accused loved the Complainant, that Effe could not do anything with the Accused and that the Accused did not want to divorce Effe but she did not want the Accused and the Complainant to end their relationship. She said the Accused said that if the Complainant wanted to end the relationship, she should get out of the car and run and that he then reached for a machete in the car. Effe then patted the Complainant on her shoulder and told her to stay. They continued to talk. They then drove back to the Accused’s house and dropped off Effe whilst the Accused took the Complainant back to her home.
10. The relationship continued.
11. Around August 2019, the Complainant returned to her family home in Vava'u. Whilst there, she got back in contact with an ex-boyfriend. She thought that if she eloped and got married with her ex-boyfriend, the Accused would not come after her.
12. However, the Accused contacted the Complainant and told her he was coming to Vava'u. She picked him up when he arrived because, she said, she was too afraid of him, that she did whatever he told her and that she could not do anything without the Accused knowing about it. She said she tried not to let her brothers know about the Accused being there. However, one evening, one of her brothers came to the house looking for the Accused. The Complainant told the Accused to hide under a bed while she argued with her brother because he had come to beat up the Accused.
13. One evening, the complainant wanted the Accused to meet her father. When they were introduced, her father was not happy because the Accused was already married. He told his daughter to take the Accused away from the house and for the Accused to leave the Vava'u. She said she went through a difficult time trying to work out how the Accused could be safe and that it was only when he returned to Tongatapu that she felt relieved.
14. The Accused kept telling the Complainant to return to Tongatapu. The Complainant told him that she would return to attend a wedding there. The Accused paid for the Complainant's trip back to Tongatapu.
15. On the day in question, Sunday, 27 October 2019, around 5 or 6 p.m., the Accused texted the Complainant that he wanted to see her because she had "fucked up” and that he had “seen everything with his own eyes”. It transpired that the Accused had seen messages between the Complainant and her ex-boyfriend. The Complainant responded that she had no idea what he was talking about and asked that he not touch her while they were talking. The Accused replied that that depended and that his hand wouldn't touch her but that a "motherfucking bullet" would if she lied to his face.
16. The Accused drove to the Complainant’s house where she was staying with a cousin in Ha’ateiho who is known as Sope. She told her cousin that she would go with the Accused and then come back. She got into his car. The Accused wound up the car windows and turned up the radio playing “cussing” music. He then drove very quickly towards the coast area. He was shouting. The Complainant said she was starting to become afraid. The Accused told her that they would talk, and she was only to tell him the truth. She agreed. The Accused eventually parked at a beach area. They both got out of the car. The Accused told the Complainant to get back into the car. She said the Accused got a lug wrench from the boot of the car and returned with it to the driver’s seat. It was starting to get dark. He locked the car doors. He then told her that if by a certain time she had not told him what he wanted to hear, he would beat her. The Complainant said she did not know where to start. The Accused said he would give her a hint by asking her whether she had contacted any other boys during their relationship. The Complainant then recalled her contact with her ex-boyfriend. The Accused became angry and kept saying the Complainant's name. He then touched her right thigh and hit her on the thigh with the lug wrench. As she was about to scream, the Accused punched her in the mouth and told her to be quiet. He grabbed her mouth continued hitting her thigh many times while punching her with his other hand. The Complainant said she tried to keep apologising to the Accused. She could barely talk as she felt part of her face and mouth becoming swollen. At one point, she said the Accused told her to take off her black skirt, tights and underwear. She took them off. She asked him what he was going to do. He said he was going to "poke her" with the wrench. The Complainant did not recall exactly what then happened, but the Accused did not poke her. She said the Accused then started talking about getting a gun to kill her and leave her at the beach. She asked the Accused to let her live so that she could return to her father. She tried to open the door, but the Accused continued punching her face, back and head.
17. The Accused then started the car and drove off. The Complainant thought she should jump out of the car, but the Accused tied her to the seat with the seatbelt. As they drove, the Accused continued to beat her and talk about getting a firearm. The Complainant asked the Accused if she could talk to his wife because she was the only one who understood him. The Complainant believed she would be safe with Effe.
18. They arrived at the Accused’s premises and parked in the front yard. It was dark by then. The Accused called Effe to come out. The Complainant said that was the first time since she returned from Vava'u that she realised the Accused was still living with his wife. She said the Accused continued to be angry and tore off part of her dress. Effe then came to the door of the vehicle and saw the Complainant inside. She asked the Accused what he was doing. The Accused asked Effe to get inside the car to look at the Complainant. Effe asked the Accused what he had done to the Complainant. Effe touched the side of the Complainant's face which was swollen and turning blackish in colour. Effe told the Accused to take the Complainant to the hospital. He refused and wanted Effe to help the Complainant. He started shouting again and told Effe that if she wasn't going to help, to get out of the car. The Accused then told Effe to get a bowl of water and a towel. Effe told the Accused to get out of the car while they planned how they would get the Complainant into the house. Effe drove the car to the parking area while the Accused went to open the door. The Accused opened some louvres to his room and told the Complainant to climb inside. He was concerned that his parents, who lived with him and Effe, might wake up or the neighbours might see what was going on. When asked why she didn't then run away, the Complainant said that she had suffered a broken left leg (as opposed to the right which had been hit by the Accused with the lug wrench) some three years ago whilst playing soccer, as a result of which, she could not run. Also, she said that she knew that if she attempted to run, the Accused would get her and do something to her. She said she did not think about shouting out to other occupants or the neighbours.
19. The Accused told Effe to get some food. She did so. The Accused told the Complainant to eat she couldn't because part of the mouth could not open. Effe then brought in a bowl of water and a towel. The Accused told Effe to leave the room because he wanted to talk to the Complainant and for her to lock the door.
20. The Accused then told the Complainant to lie on the bed. He laid down also and kept saying that the Complainant had not yet finished telling him what he wanted to hear. The Complainant told him to "let go of all those things" because she did not want to talk about it anymore. The Accused asked the Complainant whether she had talked about him with her ex-boyfriend. The Complainant said she had and that she had texted her ex-boyfriend that his penis was bigger than that of the Accused. She said the Accused then spat on her face and told her not to wipe it off. He then got on top of her and asked her whether she meant what she had said about his penis. He was trying to tear at her tights. He eventually grabbed in between her legs and pulled her underwear off. She asked him what he was going to do, to which the Accused replied "I'll show you". He then took off his pants. He pushed both the Complainant's legs up to her torso. He then positioned his penis against her anus. She said she tried to push the Accused off with her thighs. She started to scream out, the Accused grabbed her mouth so she could not shout or scream. She remembered feeling part of her face being swollen and having trouble breathing. She felt she had no strength and eventually "opened her legs and let go of her body" because she couldn't help herself. At that point, the Accused inserted his penis into her anus. She said she could not feel anything except "fire in her anus". She said that after about one or two minutes, the Accused finished. He told her to stand up and put her clothes on. She couldn't. He said it again. She said he told her "she smelt like shit". She felt ugly.
21. The Complainant said that the Accused then told her they were going to Effe's room. Whilst there, the Accused started videoing the Complainant on the her phone saying "Ladies and gentlemen, welcome to FM radio Tonga and my one and only bitch". The Complainant said she later showed that video clip on her phone to the police and that she asked them to save it on her file. The police told her to just save it on her phone. The Complainant explained that sometime after that, when she went back to Vava'u, a child was playing with her phone and somehow deleted all the data on her memory card.
22. Effie was in her room studying for exams she was to site the next day. The Accused laid a sheet down beside her with a pillow and told the Complainant to lay there. He then used her phone, pretending to be her, to send a message to her brother, Siliako, saying "The reason I'm still in Tonga because already slept with Tupou”. Her brother replied "What is to be done then?". The Accused told the Complainant he had sent the same message to her two older sisters. From that moment, the Complainant said she felt lost and that what the Accused had done with her family would mean that they would be angry with her. She did not know what to do. She thought she should die.
23. The Accused then told the Complainant to get up and go to his room. He went to sleep. The Complainant asked if she could stay with Effe. The Accused said no. The Complainant said she could not sleep that night because she was in pain.
24. The next day, Monday, 28 October, the Complainant said she was not really sure what happened that day except that if Effe came in with clothes and told her to take a shower. The Complainant said that she stayed inside the Accused’s room. She said that during the morning hours she was still afraid. At one stage, she texted Effie to see if she was up so she could go to her.
25. The Complainant said that the Accused had kept her phone up until then. He told her to text her cousin to tell her not to worry and that she was fine. After the Complainant had used the phone, the Accused took it and left with it. She said that the Accused left her in his room and locked it.
26. At one point, she said she heard someone calling from outside. Later in her evidence, when she was recounting the events between Monday and Wednesday of that week, she wasn't sure when, but there was a time when her brother called to her from outside the Accused’s house. She was the only one inside the house at the time. She said she was too afraid to go outside because the Accused might be outside or might arrive and cause problems. She was also concerned because of the texts that the Accused had sent her brother. She was also embarrassed because of the state of her face at that time and she could not let her brother see her the way she was. Shortly after her brother left, the Accused arrived at the house.
27. The next day, Tuesday, 29 October 2019, the Complainant gave evidence that the Accused was angry because he found out that her brother had come to the house and so he took her to another part of the house where he hit her shoulder with the flat of a machete blade. As she screamed, he pulled up one of her legs and threatened to cut it off.
28. The Accused and the Complainant then drove Effe to school and then to his workplace. She said that he went inside with the car keys. The car windows were up, she felt exhausted and she needed rest. The Complainant said that she did not walk away then because she was embarrassed. She did not know many people in Tongatapu at the time and she was afraid that if she went outside people might see her or she might be on the news. She therefore hid herself inside the car and fell asleep.
29. At one stage during the three days she spent at the Accused’s home, the Complainant recounted speaking with Effe while the Accused was sleeping. She said she could tell that Effe wanted to share something with her but couldn't at the time. The Complainant told Effe that she really wanted to return to her home. She asked what would happen Effe called out to the Accused’s parents. Effe told her not to because nobody could handle the Accused; not even his own parents. Effe said that the Accused had beat her in front of his parents and that nobody could do anything about it. She added that the Accused had also beaten her in public. Effe said she could not escape. When the Complainant asked Effe what she should do, Effe told the complainant to do whatever the Accused told her to do.
30. On the Tuesday evening, all three of them drove to the Complainant's cousin’s home to get $50 for food. As the Complainant got out of the car, the Accused told her to go but to return back to him. When the Complainant got out of the car, her cousin, known as Sope, saw the Complainant. The Complainant told her cousin she did not want to go back with the Accused but Sope told her to go because the Accused wife was there. The Complainant got $50 and as she got back into the car, the Accused told Sope they would drop the Complainant back later.
31. The Accused, Effe and the Complainant then went and bought food. After eating it, they returned to the Accused’s house for the night. At that point in her evidence, the Complainant described her mental state as "there was no me anymore" and that she just let the Accused do what he wanted with her while Effe was in the other room.
32. On Wednesday, 30 October 2019, the Complainant said she spent the day with Effe while the Accused was at work. The Complainant asked Effe whether both of them could escape. Effe replied that if the Accused returned and the Complainant was not there, the Accused would kill Effe. The Complainant then said that she decided to remain there for Effe and that they were planning "to do this together". Later in her evidence, the Complainant said that Effe told her that if there was a time she could go, she should “never look back”.
33. Later that day, the Complainant planned with Effe that when the Accused came home, they would all go to the beach. They did so and went to the beach for a few hours. The Complainant said that they all had fun but that the Accused got jealous and angry at one point and said that it was time to go home. The Complainant asked if they could stop by her cousin's house for something to eat. The Accused agreed. They then drove to Sope’s house. The Complainant stayed there and the Accused said that he would see her the next day. The Accused and Effe then left.
34. The Complainant said that as she went into the house, Sope came out and the Complainant began to cry. Sope asked the Complainant what had happened to her. The Complainant told Sope how the Accused had beaten her. She showed Sope her face and thighs and demonstrated how the Accused had beaten her with the wrench and that she was lucky to be alive. The Complainant then told Sope that she wanted to see her brother. Sope then contacted Siliako to come and get the Complainant.
35. Siliako arrived at the house to collect the Complainant. She got into his car. Siliako was crying and couldn't talk. Eventually, he said that neither he nor any of her other brothers had ever hit a girl. He asked the Complainant who the perpetrator was that she was so afraid of him. He then asked her to go to the police and press charges or else he would contact the rest of the brothers to come to Tongatapu. He told the complainant to wait until one of their family members, who worked at the police station, was on duty.
36. The next day, the Complainant and her brother went to the Central police station domestic violence section. She lodged a complaint. Photos were taken of her injuries [Exhibit 3] although not of her thighs because she was wearing jeans. The police informed her that she should get a medical report from the hospital. She went to the pharmacy instead and was examined there. She said that photos were taken on her phone but that her phone had since been lost. She was advised by the pharmacy to go to the hospital for a pregnancy test and x-rays.
37. They returned home that day in the early evening hours. Siliako's phone rang and it was Effe calling. The Complainant asked Siliako to tell Effe that she was trying to sleep. She said that she could hear the radio in the Accused's car driving around her house which made her feel scared.
38. Around dark that evening, the Complainant said she saw a car pull out. Effe got out and spoke with Siliako. The Complainant did not hear what they were talking about although they started to argue.
39. The Complainant said she did not explain everything to Siliako. He had just asked what the Accused had done to make her look the way she did at that time. She told him that the Accused punched her face and hit her thigh with the wrench.
40. On 5 November 2019, the Complainant was medically examined by Dr Maake Tupou at Vaiola hospital.
41. On 12 November 2019, the Complainant received a text message from Effe to the effect that she had been to see the Accused that day (who by then had been charged and was on remand) who had asked Effe to tell the Complainant that he “was truly sorry for what he had caused her and her life and he knew he could not do anything to fix it but asked if she would someday find it in her heart to forgive him for everything he had done to her and he wished her nothing but the best in life and God bless always”.
42. The Complainant concluded her evidence in chief by saying that at that time she wanted to commit suicide because she could not face her father and the thought that he might not accept her into the family home anymore.
43. Under cross-examination, the Complainant said that she commenced a sexual relationship with the Accused after she found out he was married. He was her first. The Accused led the Complainant to believe that he would divorce his wife and marry her. On the other hand, she said that the Accused regularly blamed her for the problems he had with his wife. She said that as early as November 2018, her family knew of her relationship with the Accused. She reiterated that whenever she tried to end the relationship, arguments resulted. She first started thinking about ending the relationship at the start of the 2019 academic year. When asked whether she had told the Accused that if he did not divorce his wife, the Complainant would end the relationship, she said that she had done so in early 2019 and to which the Accused responded by asking her to wait because he was "working on it". The Complainant said on more than one occasion that she loved the Accused and she knew that he loved her too.
44. It was put to the Complainant that at one time she told the Accused she was pregnant. The Complainant denied the allegation saying that since she was "new to having sex", when her period was late, she told him. She also told him that she wanted to have a child with him.
45. The Complainant denied that she ever tried to control the Accused’s life including his wages. She said it was the other way around in that when the Accused got paid, he would often shout her food and drinks. She said she could never take control of the Accused during their relationship. In something of a tit for tat, she agreed that she told the Accused to stop picking up Effe after work because the Accused had told her not to talk to other boys. Similarly, the Complainant said that as the Accused had told her to 'unfriend' all boys on her Facebook account, she told him to do the same in relation to all girls on his account.
46. In relation to previous assaults by the Accused, the Complainant said under cross-examination that there had been more than five previous occasions including other times when he did not hit her but he shouted at her and drove fast in his vehicle. On one occasion, she said, the Accused shouted at her, hit her and tore her clothes. When asked why she did not mention any of these other assaults to anyone including the police, the Complainant said that she was "here for education" and that the homes she stayed in "did not fully support her so she kept things to herself". She was also afraid, she said, that she would be sent back to Vava'u and therefore not be able to finish her studies. When asked why she did not report these matters to her brother, the Complainant said that she "did not have enough time to talk to her brothers" and that Siliako worked day and night. She added that when she he went to his house, she mostly spent time with his sister and mother-in-law. She did not mention whether she told either of those persons about the previous assaults. When asked why she didn't confide in her cousin, Sope, about these matters, the Complainant said that at that time she "just couldn't share anything about her relationship" with the Accused.
47. In relation to her return to Vava'u earlier that year, the Complainant said she could not recall the month in which she travelled. She did recall that in 2019, she only studied during the first semester. In the second semester, she said that she asked the Accused if she could drop two of her courses. In July that year, at the end of the second semester, she found out that she received grades of "0” for each of those courses. She explained that if a student was not going to sit an exam, there was a link on the University's website where the student could drop those courses. She did not say whether she did that. However, she said that because of those results, she did not have a chance to go back to school.
48. The Complainant said she returned to Vava'u in order to leave the Accused. When it was put to her that the reason was because she was no longer studying and because of her father, the Complainant said that that was one of the reasons she went back.
49. During the period she was back in Vava'u, the Complainant said that she took the Accused to a hotel where he was staying and where they have sex there on a number of occasions. She denied telling the Accused to come and meet her father. She said that she took the Accused to meet her father because her cousin told had to think wisely about the situation and that "someone was there for her". She agreed that her father told her to take the Accused away because he was married.
50. The Complainant was asked about the two times she and the Accused met with Effie. She could not recall whether it was July 2019 when she first met Effe. She said that at that time she was "really close with Effe". The Accused told her that he and Effe were no longer living together. When they met and talked, the Complainant reiterated that the Accused said that he could not give up Effe. The Complainant said she punched the Accused and told him to make a choice. Effe told her that she and the Accused could not divorce, but at the same time Effe did not know what to do because the Accused loved the Complainant. The Complainant said she was crying while Effe was trying to explain the Accused to her and "all the good in him". She said that was the day she tried to let go of the Accused, but he would not let go of her. So, the Complainant and Effe told the Accused to make a decision. He said he wanted them both. In answer to a question from the Bench, the Complainant said that Effe had made known to the Accused and the Complainant that she was prepared to stay married to the Accused while the Complainant continue being the Accused’s girlfriend. She added that Effe said that she would support them because there was no future for her and the Accused.
51. The Complainant returned to Tongatapu for a wedding in around September 2019. When she returned, she said the Accused rented a room at a guest house for two nights where she stayed with the Accused before moving to her cousin's house. She added that between then and the incident on 27 October 2019, she and the Accused "had sex a lot of times".
52. The Complainant confirmed the events on 27 October 2019 at the beach where the Accused assaulted her. However, in relation to her evidence in chief that at one stage, he told her to take off the bottom part of her clothes so that he could "poke he" with the lug wrench, and that she took those clothes off, Mr Tu'utafaiva referred the Complainant to her first statement to police dated 31 October 2019, where at paragraph 5, she said "I did not take my clothes off". The Complainant agreed she said that to the police. However, in her second statement recorded on 6 October 2019, at page 3, she stated that she did take off her clothes. The Complainant sought to explain the difference in terms that when she was first interviewed by the police she could not explain what happened clearly because she was scared of the Accused and she spent most of the time crying. That is why, she said, the second police officer approached her to make a second statement because the first was incomplete.
53. During the drive from the beach to the Accused’s house, the Complainant elaborated that he continued to hit her and that his punches landed on her upper back, but mostly on her face. At one stage, she demonstrated how the Accused used a back fist or backhand when hitting her. She estimated that he punched her face more than 10 times.
54. She maintained her evidence in chief about the events that occurred once they reached the Accused's house and how Effe had brought some water and a towel which the Complainant used to soothe her face. She added that she asked Effe if she was afraid when looking at the Complainant's face. Effe said that the Complainant's face was nothing compared to what she'd been through with the Accused.
55. The Complainant maintained her evidence in relation to the alleged sodomy.
56. In relation to the next three days the Complainant spent with the Accused and Effie, she was asked why she didn't escape, especially when her brother came to the house. The Complainant gave evidence variously that she did not know what she was thinking at the time, that she was worried about what the Accused might do to her if she left, and that Effe had advised her to continue doing what the Accused wanted.
57. Mr Tu'utafaiva put to the Complainant that she had sex with the Accused on the Monday night. She denied having sex with the Accused on the Monday or Tuesday but volunteered that they had sex on the Wednesday morning. When asked whether it was consensual, the complainant said "I let him do what he do" and that she “did not know” whether she consented.
58. In relation to the events on the Tuesday, the Complainant elaborated that in the morning, after the Accused dropped off Effe and the Complainant at his home, the Accused found out about Siliako coming to the house. He got angry and that was when he used the flat of the machete blade to hit the complainant on her upper arm. Following that, the Complainant said that between around midday that day until evening she was asleep in the Accused’s car at his workplace. When asked why she did not leave at that time, she said that she was embarrassed if somebody saw her. When it was put to her that that was a perfect chance to leave, she said that she "just couldn't get outside".
59. The Complainant confirmed the events of the Wednesday when all three ended up at the beach at Ha’ateiho. However, she said that it was her and Effe’s plan to ask the Accused to go to the Complainant's house to check for something to eat. She also said that when they arrived at Sope’s house, the Accused told her to stay there and that the Complainant said she would like to study. The Accused said he would check on her the next day and then he and Effe left.
60. In re-examination, the Complainant said that at the end of 2018 she told her family that she was in love with a married man. In relation to earlier questions about her alleged control of the Accused’s pay, the Complainant said that the Accused paid for her schooling. She added that she used to ask him where his pay came from because he would tell her how little he had. She denied ever trying to control his pay or that she asked him to give it to her. She concluded her evidence by saying, for the first time, that the rest of the Accused’s money was "from drug dealing". Neither counsel asked anything about that last statement.

Dr Kalo Lalahi

61. Dr Lalahi of the Village Mission Clinic & Pharmacy was not called to give evidence as she was in New Zealand. However, as noted above, her report dated 31 October 2019, was tendered by consent [Exhibit 4]. Relevantly, the report recorded that:
    • (a) it was written at the request of the Complainant "regarding her report of assault by her boyfriend on the night of 27 October 2019" and being beaten by the Accused with his hands, a tyre iron, the flat of a knife and that she also reported rape;
    • (b) upon physical examination, she was found to have bruising to her mouth and jaw, her left eye, thorax, a light bruise to her left upper outer arm and a large 15 x 15 cm bruise on her right leg;
    • (c) a pelvic exam was not performed because it required forensic process and the doctor issued a letter requesting that examination;
    • (d) she also requested x-rays of the cervical spine, jaw and eye to exclude fractures; and
    • (e) "no other injuries reported or seen".

Dr Ma’ake Tupou

62. Dr Tupou's report was also tendered by consent [Exhibit 5]. During the reading of his report, he elaborated on aspects of it. Under the section entitled "Type of cases", the doctor reported that the Complainant had been brought in by the police for examination as she claimed that her boyfriend forced her to have anal sex on 28 October 2019 because he was angry with her and that he had assaulted her before the sexual assault. He also recorded bruising in and around the complainant's left eye, and on her right thigh, the discolouration of which suggested they were at least four days old. Dr Tupou also observed 3 to 4 fresh fissures in the Complainant's anus at the 12 o'clock area each about 30 mm in length. There was obvious tenderness to touch but no bleeding suggesting signs of healing in progress.
63. During his evidence, Dr Tupou described the bruises to the Complainant's thigh as consistent with being grabbed hard or being hit with a blunt object. He also described the anal fissures as being consistent with the reported forced anal sex.
64. However, under cross-examination, the doctor also agreed that, as the tissue around the anus is very sensitive, the fissures could have been caused by other means including even a difficult bowel movement (or as Mr Tu'utafaiva put it, "a hard poo"). He said that they could also have been older than 3 to 4 days depending on how often the Complainant had defecated during that period. He also said that the location of the fissures was consistent with the Complainant's account of the penetration occurring when her knees were pushed up to her chest.
65. In answer to a question from the bench, Dr Tupou said that his experience was limited to only a few previous cases concerning reported anal sex.

Siliako Mailangi

66. The Complainant's brother gave evidence that he could not recall the evening when the Complainant texted him that she was at the Accused’s house. He said he responded by asking her what she was doing there. She did not reply. A day later, he received a text message from Sope who said she had spoken to the Complainant by telephone. Sope asked Siliako to get the Complainant and bring her back because the Complainant sounded afraid.
67. When Siliako went to the Accused’s house, he said a lady introduced herself as the sister of the Accused’s mother. She said there was nobody there by the Complainant's name and that the house was locked. The lady asked him why he was there. He told her that the Complainant was the Accused’s girlfriend. The lady said that the Accused was married. He told her he was there to look for his sister because he assumed she had been beaten and that if they did not return his sister, he would go to the police.
68. Siliako said that on the Tuesday evening, Sope called him to come and collect the Complainant from Ha’ateiho. He went to the house and called for her but the Complainant was embarrassed and hiding. When he saw the Complainant, he could see she was in pain. She used her hair to hide her face. He tried to comfort her. They were both upset. The Complainant then explained to him how the Accused had beaten her after seeing text messages on her phone. In relation to the beatings, Siliako recounted the Complainant saying that the Accused started beating her by punching and slapping her and grabbed her face. She felt like her leg was broken. She said that the Accused had “something in his hand” and used it to hit her legs. He then told the Complainant to press charges so that the police could record everything. He said he then realised that the Complainant had been living at the Accused’s house for about three days before she was brought home.
69. Siliako accompanied the Complainant to the police station. He waited outside while she was interviewed. After her first statement to police, Siliako overheard a telephone call, which was placed on speaker, between the officer and the Complainant telling her to have a medical examination done based on rape. After that examination, they were told to go to the hospital for x-rays. He said he did not discuss any rape with her because it was very hard to talk about.

Malia Asopesio Latu

70. The Complainant's cousin, Sope, confirmed that on Sunday, 27 October 2019, around 6 PM, the Complainant was picked up by the Accused. The Complainant did not return that night. Around 2 AM on the Monday morning, Sope received a text from the Complainant not to be concerned about her because she was okay and that she would come and talk to her about what had happened.
71. By Monday morning, Sope was concerned about the Complainant. On Monday evening, she called the Complainant who was crying as she was speaking. She told Sope that she could not see her because of what happened to her. Sope told the Complainant to come home and that it was okay. She said the Complainant told her she was afraid but that the Accused would drive her back home.
72. On the Tuesday morning, Sope decided to start searching for the Complainant. She called the Accused and asked for the Complainant's whereabouts. The Accused told her that the Complainant had left with a friend of hers. Sope asked for the name of the friend. The accordingly said he did not know. Sope contacted Siliako to find out the location of the Accused’s house. When she arrived there, she saw the Accused getting into a car about to leave. She drove past and parked on another road. When she saw the Accused had left, she reversed back and parked in front of the Accused’s house. She started calling out for the Complainant. She also called the Complainant's phone. She tried to go around a backstreet to the property on the beach side but couldn't. She then left.
73. Sope called the Complainant's phone again and this time she answered. She asked the Complainant where she was. The Complainant said she was in the Accused’s house. Sope told her to come outside so that they could leave. The Complainant said she couldn't because she was afraid. She told Sope to go to the Accused and tell him to take a home.
74. Sope then drove the Accused’s workplace. She asked him to take the Complainant home because she was supposed to be leaving for Vava'u. The Accused said he would drop the Complainant home that evening.
75. That evening, when the Accused brought the Complainant back to Sope's house, she thanked him. She also noticed somebody sitting in the back seat of the car whom the Accused described as his wife. Sope invited them all in to talk. The Accused’s wife got out of the car. However, they did not all go into the house because the Complainant did not want to. Sope said she could then see bruising on the Complainant’s eye and chin. Sope apologised to Effe for what the Complainant had done. Effe said that it was okay and that there have just been differences between the Accused and the Complainant. Sope said she then told the Complainant to stay home that evening. The Complainant told her to ask the Accused. Sope asked the Accused to leave the Complainant behind but the Accused said that they would all go to the store and then come back. The Accused reminded Sope that he had told her earlier that day that he would drop her home and that they were just going to the store and would return. They all left. However, the Accused did not return the Complainant to the house that night.
76. On the Wednesday, Sope contacted the Accused and asked him why he had lied about returning the Complainant to her home the evening before. The Accused said that the Complainant had already left with his wife who he said lived at Kolofou’a. Sope then went out searching for the Complainant but could not find her. She contacted Siliako and informed him of what had happened. She then returned home.
77. On the Wednesday evening, the Accused and his wife dropped the Complainant back at the house. Sope asked them where they went. They said they went to the beach for a swim. She thanked the Accused who then left with Effe.
78. Sope said she could see the Complainant's face was still blackish in colour. She asked the Complainant what happened. The Complainant told Sophie that she had gone with the Accused to the beach, that the Accused had tied her with a seatbelt and used his hand to punch and smack her face and a lug wrench to hit her leg so she could not escape or run. The Complainant showed Sope the bruising on her leg. She explained that the Accused had beaten her after he saw text messages with her ex-boyfriend in Vava'u. Sope told the Complainant that she would contact Siliako to get her and he did.
79. During cross-examination, Sope recalled that on the Tuesday evening, when the three were at her house, Sope's son got something from inside the house that belonged to the Complainant.

Accused

80. The Accused elected to give evidence. He is 26 years of age. He lives in his parents’ house at Kolomotu’a. He commenced employment this year as a teacher at St Andrews High School. He previously worked in the accounts section at Real Tonga airlines. Between 2016 2019, he studied at USP for a business degree, which he had not yet completed. He married Effe in 2011.
81. The Accused said that he first met the Complainant through Facebook in February 2018. They commenced a sexual relationship in April that year. Thereafter, problems arose due to the Complainant becoming increasingly angry because the Accused would not leave Effe.
82. When Effe first found out about the affair, she was angry and returned to her family home. By July 2019, the Accused said that the relationship with the Complainant ‘had a lot of problems’. The Complainant wanted him to hurry his divorce from Effe. He explained that the Complainant returned to Vava'u because she was suspended from USP due to poor grades. In response to her evidence that she asked him to drop two of her courses, the Accused explained that every student has his or own profile at the University which only the student can access. He did not know why the Complainant did not change her courses herself and he denied that she asked him to do it.
83. The Accused denied the Complainant's evidence about the previous assaults.
84. He recounted the first time the Complainant met Effe in about July 2019 when the Complainant asked him if she could go to his home. He had just intended a night out. The Complainant wanted to see whether Effe was still living at the home. He took her to the home and introduced her to his wife and his mother simply by the Complainant’s first name. He said that Effe new that the Complainant was his girlfriend. Effe had only just returned to his house that week. He felt guilty.
85. The Accused recounted how the three of them then drove to an area in Sopu to talk. He said the Complainant apologised to Effe for having a relationship with him and that Effe told the Complainant to leave him alone.
86. A couple of days after their first meeting, the Complainant came to his house again. The Accused explained how there were four rooms in his house, one for his parents, one for him and one for Effe who had only recently returned to the house and did not want to share a bed with the Accused at that time. No one used the fourth room. All three got into the Accused’s car and went out drinking. When they returned, the Complainant got back in her car and left.
87. The Accused confirmed the Complainant's evidence about the events in Vava'u earlier that year. He said she returned because she was not studying anymore and therefore had to return home to take care of her father. The Accused went to Vava'u to see the Complainant. He told Effe he was going there for work. He confirmed the other details of that trip. When they were going to the airport in Vava'u, he told the complainant that that should be the end of their relationship. The Complainant told him she had already fallen in love with him.
88. After he returned to Tongatapu, the Complainant continued to contact him. She did not accept the breakup. The Accused was interrogated by Effe about his trip to Vava'u. He confessed that he had gone to see the Complainant. Effe then left the house and the two separated again.
89. The Accused continued to contact the Complainant while making efforts to get Effe to come home. As this was the second separation, Effe insisted that if she were to return to the home, the Accused was not to contact or have anything further to do with the Complainant. Effe returned in September. They slept in separate rooms.
90. The Complainant returned to Tongatapu in September to attend a wedding. She asked the Accused to pay for her fare, which he did. After she returned, the Accused continued contact with the Complainant including sex.
91. The Accused’s evidence about the events leading to the assault at the beach on Sunday, 27 October 2019, was largely consistent with that of the Complainant. However, there was one significant difference. When explaining how the Complainant confessed to having been in contact with her ex-boyfriend in Vava'u, he said he was "blinded with rage and anger” which resulted in him punching, slapping and backhanding the Complainant's head and legs. He said he was sad and disappointed because "she almost took control of his life" by insisting upon who he could and could not talk to (including any other women), what he could do with his pay (which included the Complainant questioning the Accused if he spent any money on Effe) and she wanted him to give her his pay because she said she was "wiser". He said she also controlled his vehicle by insisting on him not picking up Effe from school or work. He described all this as "pressure".
92. The Accused emphatically denied using a lug wrench when hitting the Complainant or that he told her to take off her clothes so that he could poke her with the wrench.
93. After the assault, when he had calmed down, the Accused said he apologised to the Complainant and told her that it was over between them and that he would be returning back home. He was going to take her back to her home. She asked him if he could take her to Siliako's house. He believed the Complainant was trying to buy time to explain her reasons about communicating with her ex-boyfriend. Nonetheless, he agreed to take her to Siliako's house.
94. After they left the beach area, they drove to Siliako's house. However, the Complainant did not want to get out, so they went back to his place. The Complainant still wanted to talk to him and she remained in the car because she was afraid that the Accused was still with Effe. He had not told the Complainant that he was still with Effe when the Complainant returned from Vava'u. The Complainant asked the Accused if she could talk with Effe whom she thought was still at her mother's house. Of course, the Accused knew that Effe was at his home. So, he drove there. He did not tell the Complainant that Effe would be there but simply complied with her insistence that she be able to talk to Effe.
95. It was night when they arrived at the Accused’s house. They came through a side gate and parked in an open field at his home. He telephoned Effe to come out to the Complainant with a bowl of water and a towel. Effe came out but without the water and towel. She was very angry when she saw the Complainant but surprised when she saw the state of her face. Effe the Complainant to come inside the house so she could fix her face. Effe then went back inside the house. The Accused and the Complainant then went through another gate to the residence which led to the front veranda of the house. Effe told them to wait in the car while she checked to see if the Accused's parents were asleep. After confirming that they were, the Accused went into the house and opened a sliding window to his room. The Complainant then climbed through the window. All three were then in the Accused's room. Effe went and got water and a towel to tend to the Complainant's face. The Accused sat off to the side. Effe went to the kitchen and brought food for them to eat. The Complainant was sitting with the towel on her face. She did not want to eat. The Accused did. Effe then went to her room to study for her exams. The Complainant joined Effe in her room. After the Accused finished eating, he went to Effe’s room and knocked on the door to check on the two women and to see whether the Complainant wanted to be taken home. Effe opened the door and told him that he was ‘not accepted in her room’ and that she and the Complainant were still talking. The Accused then went back to his room and fell asleep. At daybreak, he woke to find the Complainant lying on the bed with him. He got up and got ready for work.
96. The Accused again emphatically denied the Complainant's allegations of sodomy.
97. On the Monday, the Accused started work at midday. Before then, he went to the living room with the Complainant and watched TV. Effe went used their car to go to her exams. Both the Accused’s parents had already left for work. He fell asleep and was awoke when Effe returned from her exams. The Complainant was sitting on one of the sofa chairs watching TV. Around 1:30 PM, the Accused left for work, at which time, the Complainant was in the living room with Effe.
98. After work, the Accused returned home around 5:30 PM. The Complainant was with Effe in her room. The Accused was concerned about when the Complainant would return to her home and so he asked her. The Complainant said she was afraid to go back because her brothers and family had rejected her after the text the Accused had sent to Siliako while they were at the beach on the Sunday evening. The Complainant told him that if her brothers knew she had been sleeping with the Accused, they would be angry at her because she had been hiding the truth about the nature of their relationship. The Complainant repeated that she was too afraid to go back to her home because she was afraid of Siliako and that her father might know about it. She then said that she would stay at the Accused’s house that night. The Accused said that after the Complainant finished talking with Effe in her room, the Complainant slept with him in his room and that they had sex.
99. On the Tuesday, the Accused went to work while Effe went to school. His parents still do not know the Complainant was staying there. The Accused and the Complainant dropped Effe at school while he went to work. He said the Complainant asked for the car keys which he gave her. Sope came to the Accused’s workplace looking for the Complainant. He told her that she was with Effe. He denied telling Sope that the Complainant was with a friend. He finished work around 4:30 PM and found the Complainant asleep in the car. They both then went and picked up Effe from school.
100. The Accused confirmed the Complainant's evidence about going to Sope's house that evening to get $50 for food. The Complainant got out of the car to go and get the money and she returned with it. He agreed that he told Sope that they would go and get some food and that he would then bring the Complainant home. However, he said that after the three of them had eaten at a restaurant nearby, the Complainant said they should go back to the Accused’s house because she was still afraid of Siliako and her family being angry with her. Therefore, they all returned to the Accused’s house and slept there. Again, the Accused said that around midnight, he slept (and had sex with) with the Complainant while Effe was in her room.
101. On the Wednesday, the Accused went to work. Effe did not have any exams and so there was only her and the Complainant at the house. When the Accused got home from work, the Complainant asked if they could all go to the beach. The Accused and Effe agreed. After their swim at the beach, the Complainant said she would go home because “the news” had reached her family in Vava'u. The Accused then took the Complainant home to Sope.
102. During cross-examination, the Accused denied any suggestions of recent invention or fabrication of certain details within his evidence in chief surrounding the main events. He said that he told his counsel about those matters including, for example, that his assault on the Complainant included punching her leg two or three times. Otherwise, and generally, he denied the Complainant's evidence wherever it was at odds with his.
103. One example of where the Accused sought to demonstrate the falsity of the Complainant's evidence was in relation to her statement that on the Sunday evening the Accused had locked her in his room after he ate. The Accused gave evidence that his room has no lock. That was not challenged. When he was asked why he thought the Complainant would lie about her allegations, the Accused suggested that she had done so because he had told her that they should end their relationship. When asked whether the Complainant had lied to him before, he said that she had told him she was pregnant, which was not true.

Mele Pisila Fifaila Haupeakui

104. The Accused’s wife, Effe, is employed as a librarian also at St Andrews High School. She too is studying a business degree. She described her marriage with the Accused as good up until about March 2018 when they started having problems due to the Accused’s affair with the Complainant, about which, Effe found out through Facebook. The affair led to two periods of separation, the first in around July 2019 for about two weeks and the second just before the incident on 27 October 2019.
105. Effe recalled first meeting the Complainant when the Accused brought her to their house at Kolomotu’a. She said she was surprised when the Accused turned up with the Complainant and asked Effe and his mother to come and meet her. She felt angry that the Complainant was in the vehicle. She never thought she would actually meet her. The Accused introduced the Complainant as his girlfriend. She asked them why they came to her. The Accused said that the reason was for Effe to meet the Complainant. The Complainant said she felt regret knowing that the Accused and Effe were still together. The Complainant asked the Accused to choose between the two women and started shouting at him telling him to pick. She said that the Accused said he wanted and loved the Complainant but could not let go of Effe. The Complainant cried and said things to which Effe did not pay attention.
106. Effe confirmed that the Accused told her that he went to Vava'u for work reasons, and that when he returned, they initially continued living as husband and wife.
107. The second occasion Effe met the Complainant was unexpected. She said that the Accused turned up with the Complainant and all three of them went drinking at a bar. She said she did not recall any problems between them because she was too drunk by the time they came out of the clubs.
108. In relation to the events of 27 October 2019, Effe gave evidence that at around 9 or 10 PM, when she was about to go to sleep before exams the next day, the Accused’s mother knocked on her bedroom door saying that the Accused was on the phone. He told Effe to come to the side of the house with a bowl of water and a towel. She went out to the Accused albeit without the things he asked her to bring. She was angry. When she got to the car, she saw the Complainant in the front passenger seat. The Complainant refused to look at her. Effe tried to turn the Complainant's face towards her and was surprised when she saw bruises on her face and chin. She asked the Accused why they had come to her. The Accused told her he did not know what to do and that the Complainant was too afraid to go back to her home.
109. Effe then went back to the house to check on whether the parents were asleep so that they could bring the complainant into the house to treat her face. After confirming that the parents were asleep, she called out to the Accused to come around the other side of the house. Effe turned off all the lights in the house. The Accused entered the house and opened a sliding window, as he said in his evidence, so that the Complainant could climb inside the house into his room.
110. Effe then got ice cubes, a bowl of water and a towel and attended to the Complainant's facial injuries. She brought food in from the kitchen but the Complainant did not want to eat. She then told the Accused that she was returning to her room to study. Less than a minute later, the Complainant came into Effe's room and asked if she could stay with her. Effe agreed and closed the door. They both sat on Effe’s bed and talked. She said the Complainant was crying about not wanting to go home because she was afraid that her brothers and sisters in Vava'u would find out about her relationship with the Accused. Effe said that while she felt angry towards both the Accused and the Complainant, she felt some sympathy for the Complainant given the facial injuries she had suffered.
111. They talked all night until about 5 AM on the Monday morning. She knew the time because that was when the Accused’s parents always woke up. Effe saw that their bedroom door was open. She therefore told the Complainant to go to the Accused’s bedroom because Effe had to get ready to leave.
112. She only had one exam that day which finished at 11 AM. She then returned home. She found the Complainant in the living room watching TV. She said ‘Hi’ to the Complainant who seemed fine. The Accused was sleeping on another chair. He woke up and asked Effe to take him to work, which she did. She then returned to the house and stayed with the Complainant that afternoon and evening. She called the Complainant into her room because she was afraid that the Accused’s parents would return and find the Complainant there. They still did not know the Complainant was in the house. She recalled the Complainant talking to her about when she was at high school in Vava'u and before she met the Accused.
113. The Accused returned home from work around 4:30 PM. His parents returned home later. The Complainant was with Effie in her room. She then went to the Accused’s room while Effe prepared dinner. She put some food away for the parents and asked the Accused and the Complainant if they wanted to eat. They said no. Around 8 or 9 PM, when the parents went to sleep, the Complainant went to Effe’s room and stayed up talking with her again all night until around 5 AM when the Complainant again went back to the Accused’s room.
114. On the Tuesday morning, after Effe had dropped the Accused’s parents at work, she returned to the house. The Accused told her he was going to work that day. All three of them dropped Effe at her school and the Accused and the Complainant went off.
115. Later that day, the Accused and the Complainant picked Effie up after school and they returned to the house. The Accused asked her if it was okay for them to go to the Complainant's home to get $50 for food. She agreed and they all went. When they arrived at Sope’s house in Ha’ateiho, Effe got out of the car with the Complainant to get the money. She saw Sope who asked the Complainant who Effe was. Sope asked Effe if she was the Accused’s wife to which Effe said yes. Effe said she did not hear what Sope and the Complainant talked about. She just waited for the Complainant. When the Complainant came out, Sope asked her when she would be back. The Complainant said she would come back later.
116. The three of them then went to town to a Chinese restaurant located at the wharf where they bought food. They ate the food at the back of the restaurant. The Accused asked the Complainant if she was going home that night. The Complainant said no because she was still afraid. In answer to a question from the Bench, Effe said that the Complainant was only afraid of her family finding out that she had an affair with a married man. Effe spoke with the Accused about when the Complainant was going home. He told her he was just trying to help her while she was afraid of her family.
117. Effe said in evidence that she never saw or heard anything which indicated that the Complainant was scared of the Accused or that he was not letting her go home.
118. That evening, the Accused asked Effe if they could all go to the beach the next day after her exams. Effe told the Accused to ask the Complainant. The Complainant agreed. The Accused went back to his room and the Complainant was with Effe in her room. She found out later that the Complainant's older brother and her sisters had tried to contact the Complainant earlier that day. Again, the Complainant stayed in Effe’s room that night until around 5 AM when she went to the Accused's room.
119. On the Wednesday morning, Effe woke up to a text from a schoolfriend saying that the exams for that day had been cancelled. The Accused asked Effe to stay with the Complainant while he went to work. Effe and the Complainant watched TV. They then went back to Effe's room and laid on her bed. Effe asked the Complainant how things would be once she returned home and how her brothers would look at her once they knew what had happened. The Complainant said that she was most afraid of her father finding out.
120. After the Accused returned from work that evening, the three of them got ready to go to the beach. Effe shared some of her clothes with the Complainant. They then went to a beach at Ha’ateiho and swam together. Effe said that she noticed something strange about the Complainant's demeanour when she saw Effe and the Accused talking. The Complainant swam away to another part of the beach. Effe followed her to see what was wrong. The Complainant said nothing and that everything was okay. After their swim, they got changed and Effe drove them back. The Complainant then asked if they could stop by her house at Ha’ateiho to see if there was any food. When they got to Sope’s house, the Complainant went and checked for food. She came out and said there was none. The Accused then asked the Complainant if she wanted to stay. The Complainant asked the Accused if he would come by the next day. Effe was not sure if the Accused in fact saw the Complainant the next day.
121. Under cross-examination, Effe initially said that the Accused had never assaulted her. However, when questioned about a complaint she made to police in September 2019 involving the Accused hitting her with the flat of a machete blade on her shoulder, Effe said that there had been a misunderstanding. She explained that on that day she returned from a picnic with friends. She was drunk. The Accused was on his phone to the Complainant. Effe kept asking why he was still in contact with the Complainant and she threw a stick at him. He then hit her with the flat of the machete on her shoulder and kept talking on the phone. Effe then made the complaint to police. The next day when she woke up, she withdrew it.
122. Effe denied a number of propositions put to her by the Prosecutor, including:
     • (a) that the Accused had beaten her in front of the Accused’s parents or in public. She was surprised by the suggestion and said that she never told the Complainant anything like that. She said the Complainant was lying;
     • (b) that she became close with the Complainant;
     • (c) that she let the affair with her husband continue. She was adamant that she did not want the affair to continue;
     • (d) ever saying to the Complainant that there was no future between her and the Accused;
     • (e) ever being afraid of the Accused; and
     • (f) ever telling the Complainant to continue her relationship with the Accused.
123. When asked further about the events of the Sunday evening, Effe added that the Complainant asked Effe for the Accused not to come into Effe's room where they ended up spending the night talking.
124. Effe noted that the police never took a statement from her about this matter. She asked them if there was a statement she had to make but they told her she was not involved in the matter.
125. Finally, Effe said that there was nothing wrong between the Accused and the Complainant during the Complainant’s stay at their home and that the Complainant was "a free bird in the house".
126. In re-examination, when asked about how she was able to stay up for most of the three nights, Effe explained that during the day at school there was free time between lessons during which she was able to naps.

SUBMISSIONS

Defence

127. Mr Tu'utafaiva submitted that the Prosecution had not proven its case on each of the counts beyond reasonable doubt because, in summary:
     • (a) in relation to the sodomy charge:
       • (i) there were various and inconsistent reasons put to the Accused as to why he took the Complainant back to his house after the assault at the beach;^[1]
       • (ii) it was the Complainant who wanted to return to the Accused’s home and not to her brother’s place because she did not want her relationship with the Accused to end;
       • (iii) there was no reason for the Accused’s admitted anger continuing after the assault at the beach to explain the alleged sodomy;
       • (iv) during the three days she remained with the Accused and his wife, the Complainant did not tell the Accused’s parents or Effe or her cousin, Sope, or her brother, Siliako, about the alleged sodomy;
       • (v) although the Complainant was recorded by Dr Lalahi as reporting that she had been raped, that report did not include any mention of sodomy or of any injury or pain associated with the alleged forced anal sex;
       • (vi) there is no clear evidence of what the Complainant did in the intervening five days, or any reason for that delay, before Dr Tupou recorded the anal fissures; and
       • (vii) despite ample opportunities to leave during that period, including when her brother came to the house, the Complainant remained with the Accused and Effe;
     • (b) in relation to the common assault charge:
       • (i) despite the Accused admitting that he punched the Complainant at the beach, including two or three punches to her leg, the Prosecution elected to maintain the particulars of the assault as only the striking of the Complainant’s leg with a lug wrench;
       • (ii) there is no physical evidence of the lug wrench or even a photograph of it;
       • (iii) the medical evidence of bruising to the Complainant’s right thigh is unclear as to causation;
     • (c) in relation to the domestic violence charge, the Prosecution did not open its case with any specificity as to the ‘physical abuse’ referred to in the indictment. It was only in closing submissions that the Prosecution relied on the force used leading to the alleged sodomy and the alleged hitting of the Complainant with the flat of a machete blade on her arm. Mr Tu'utafaiva submitted that neither had been proven beyond reasonable doubt.

Prosecution

128. The Prosecution submissions may be summarized as follows:
     • (a) It was agreed during the trial that consent is not an element of sodomy as provided by s.136 of the Criminal Offences Act.
     • (b) The Prosecution appears to have misunderstood Mr Tu'utafaiva’s submission at [3] thereof. In its corresponding submissions, the Prosecution averred to having put the various reasons to the Accused in discharge of its obligations under the rule in Brown v Dunn.^[2] Mr Tu'utafaiva did not submit otherwise.
     • (c) The explanation for the Complainant going with the Accused after they left the beach area in Ha’ateiho was not that she did so willingly but only out of fear. Further, when she tried to get out of the vehicle at one point, the Defendant hit her and tied her to the seat with the seatbelt. She did not go to her brother’s house then because she did not have an opportunity to do so. “It is completely illogical for a person in the Complainant’s position, who had just been beaten up, to want to continue her relationship with the Defendant.”
     • (d) The Complainant gave credible evidence and maintained her evidence under cross-examination. “There is little to no doubt that her very detailed account of how the sodomy was committed by the Defendant could have been fabricated”.
     • (e) Dr Tupou’s evidence corroborated the Prosecution case on the sodomy charge.
     • (f) The Accused’s anger did continue after they left the beach and returned to his house when the Complainant told him about her text messages to her ex-boyfriend to the effect that his penis was bigger than the Accused’s. That ‘hurt’ the Accused’s ‘ego’, which, together with his previous anger, was the reason he committed the sodomy.
     • (g) If the court accepts the Complainant’s evidence of the previous assaults by, and controlling behaviour of, the Accused, then it ‘should not be difficult’ to accept that he committed the instant offences.
     • (h) The Accused’s admitted ‘rage’ and assaults on the Complainant at the beach ‘are clear indicators that he was angry enough to commit’ the sodomy.
     • (i) The Complainant’s failure to tell anyone about the alleged sodomy prior to her medical examinations (assuming that her report of rape to Dr Lalahi can be interpreted as including the alleged forced sodomy) can all be explained by the Complainant’s fear of the Accused.
     • (j) Further, that fear of the Accused, together with her concern for Effe, explained why the Complainant did not try to escape from the Accused’s house during the three days in question and why she instead took Effe’s advice of “acting normal” and “doing what the Defendant wanted”, in order to appease him to willingly release her.
     • (k) Effe’s evidence should not be accepted as she had a clear motive for lying. In particular, her evidence about being up all night talking with the Complainant was implausible given she was sitting exams each day and the timing provided was not consistent with the Accused’s evidence on that issue.
     • (l) The Accused’s apparent defence to the common assault charge, that he only punched the Complainant’s thigh and did not hit her with a lug wrench, was not put to the Complainant and ought therefore be considered as having been fabricated.
     • (m) The shortfalls in the police investigation, including no evidence of any lug wrench and photos of bruising on the Complainant’s thigh having been deleted from her phone, ‘do not affect the Prosecution’s case on proving this count beyond a reasonable doubt’.
     • (n) The Complainant’s account of the Accused hitting her with the lug wrench is consistent with what she told Sope, Siliako and Dr. Lalahi.
     • (o) In relation to the domestic violence count, the Accused had ‘ample opportunity to test’ the Complainant’s evidence in cross examination and therefore ‘was in no way prejudiced’ by the Prosecution’s failure in opening to specify the evidence upon which it intended to rely.
     • (p) The Accused’s evidence should not be accepted because it was inconsistent and there were aspects of it not put to the Complainant which therefore smacked of recent invention.
     • (q) Effe’s evidence is not reliable because she was motivated by either love for, or fear of, the Accused and/or hate for the Complainant. One example of her evidence highlighted was her initial denial of ever having been assaulted by the Accused followed by her account of him hitting her with the flat of a machete blade, thereby providing a ‘glimpse’ into their ‘abusive’ relationship. Another was Effe’s evidence of not sleeping for three consecutive nights because she was up listening to the Complainant talk, which was quite unreasonable’ and a ‘clear attempt to safeguard the Defendant’.

CONSIDERATION

129. I have carefully considered the evidence of each of the witnesses and the parties’ submissions in respect of each of the three charges laid by the Crown.
130. I will turn first to the Prosecution’s reliance upon the purported propensity evidence, then provide a general assessment of the evidence of each of the witnesses followed by my determination of each count.

Propensity evidence

131. As noted above, during the trial, the Prosecution sought to lead evidence from the Complainant in relation to previous alleged assaults by the Accused. The Complainant said the Accused had assaulted her on more than five occasions prior to the events of 27 October 2019. When asked why, in those circumstances, she continued the relationship, the Complainant said she did not know.
132. During the course of that evidence, I raised with counsel, in the absence of the Complainant, the relevance and intended purposed of the evidence. Ms Kafa submitted that the Prosecution was entitled to adduce the evidence as similar fact or propensity evidence to support the instant charges. She confirmed that the Prosecution had not given any notice to the Accused of its intention to call such evidence. Curiously, Mr Tu'utafaiva did not object to the evidence being given, although he did say it was the first time he had heard of it. The matter was therefore stood down to enable Mr Tu'utafaiva to take instructions, and if necessary, apply for an adjournment. After an extended lunch break, Mr Tu'utafaiva was content for the trial to resume. I expressed my preliminary view that the evidence to that point was arguably relevant and sufficiently cogent to be admissible as propensity evidence but that I would reserve my final opinion on that to the conclusion of the evidence.
133. There is no legislative provision governing the admissibility of similar fact or propensity evidence in Tonga. Arguably, it may be precluded by s.34 of the Evidence Act which limits evidence of character to general reputation only and excludes evidence relating to particular acts of good or bad conduct. As that issue was not raised during the trial and neither counsel addressed it in their respective submissions, it is unnecessary to consider it further on this occasion.
134. The common law test or ‘high bar’ for admissibility was discussed recently by Cato J in R v Kupu [2020] TOSC 44. At [22], His Honour referred to the seminal House of Lords decision in R v Boardman,^[3] in which Lord Cross observed:

“Circumstances ... may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.
...
The question must always be whether the similar fact evidence taken together with other evidence would do not more than raise or strengthen a suspicion that the Accused committed the offence of which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in the face of it. In the end - although the admissibility of such evidence is a question of law, not of discretion – the question as I see it is one of degree.”

135. The House of Lords in DPP v P^[4] qualified Boardman by rejecting the problematic requirement for the evidence of propensity to be “strikingly similar” as the sole test for admissibility and preferring a “high level of cogency” test. In delivering the principal judgment, Lord Mackay emphasized that:

“Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”

136. Absent statutory provision,^[5] evidence of mere propensity to behave badly is to be excluded as unfair: Myers [2016] 2 LRC 383 at [40]. Similarly, evidence which does no more than demonstrate that the defendant is a violent person will ordinarily be inadmissible: Phillip v Director of Public Prosecutions [2017] UKPC 14.^[6] Admission requires justification beyond mere propensity. The evidence must demonstrate a sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation: R v Mitchell [2017] 1 All ER 1037.^[7]
137. In Phillip, the Privy Council identified a number of examples which may justify admission including so-called similar fact evidence,^[8] where it is sufficiently compelling to have real value in controverting innocent coincidence. Another is where there has been a course of violent dispute between the defendant and the victim; there the evidence may be admissible (inter alia) to show either who was responsible for the last (charged) occasion, or the intention with which the defendant acted on that occasion, or to explain the reactions of the two parties. Likewise, in a case of alleged sexual abuse, the history and nature of a relationship said to have been abusive will often be relevant to proving a particular incident charged, even though it also shows prior misbehaviour by the defendant. It is impossible to catalogue every situation in which such justification may be present. But unless it is, evidence of misbehaviour unconnected with the offence charged is not admissible.
138. The Board in Phillip also drew attention to the importance, where evidence of misbehaviour other than that charged is advanced at the trial, of carefully observing the basis on which it can be considered.^[9] The admission of evidence of this kind must be justified. It is not enough that it is 'part of the background'. That is too easy a generalisation and fails to distinguish the admissible from the inadmissible. Similarly, the Board cautioned against the easy assertion that the evidence is admissible because it ‘goes to credibility' as being susceptible to rejection.
139. Before the enactment of the 2004 Order in the UK (and its England and Wales counterpart, the Criminal Justice Act 2003) there had been no clear, definitive statement on the issue of how juries (and judges alone) should treat evidence of similar facts or propensity. In R v Mitchell, ibid, the UK Supreme Court explained that it is not necessary for the prosecution, relying on non-conviction bad character evidence on the issue of propensity, to prove the allegations beyond reasonable doubt before a jury can take them into account in determining the defendant's guilt or innocence. Further:

“The existence of a propensity had to be proved to the conventional criminal standard. However, a distinction had to be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity existed. Where several incidents are relied on by the prosecution to show a propensity, it is not necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred; neither do the facts of each individual incident have to be considered by the jury in isolation of each other. The proper issue for the jury on the question of propensity is whether it is sure that the propensity has been proved.
In the case of a sole incident, the only way in which a jury could be sure would be by being convinced that the incident had been proved to the criminal standard. That does not mean that, in cases where there were several incidents, the jury has to be convinced of the truth and accuracy of all aspects of each of those. The jury is entitled to, and should, consider the evidence about propensity in the round. The improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jury's deliberations on whether propensity has been proved. Moreover, obvious similarities in various incidents might constitute mutual corroboration of those incidents. Each incident might thus inform another. The issue of the existence of a propensity stands apart from evidence which speaks directly to the defendant's guilt or innocence of the offences charged. Evidence of a propensity or tendency to commit a specific type of crime or engage in a particular species of misconduct is not in pari materia with testimony which touches on the actual events said to constitute the particular crime involved.
Therefore, a jury should be directed that before they take propensity into account, they have to be convinced that propensity has been proved. That does not require that each individual item of evidence said to show propensity has to be proved beyond reasonable doubt; it means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether the jury is sure that the existence of a propensity has been established. That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt.”

140. Finally, the Court emphasised that propensity is, at most, an incidental issue.^[10] It must be made clear to juries (and judges alone should bear in mind) that the most important evidence is that which bears directly on the guilt or innocence of the Accused. Propensity cannot alone establish guilt and it must not be regarded as a satisfactory substitute for direct evidence of the Accused's involvement in the crime charged.
141. Returning briefly then to Kupu, I respectfully agree with Cato J’s description of the correct procedure to be followed in such cases, namely that:

“Where the prosecution wish to admit propensity evidence, notice should be given well in advance of trial so that the defence is put squarely on notice, before trial, that this kind of evidence will be part of the prosecution case.”

142. In that case, His Honour considered that even if the evidence met the cogency test, he would have been inclined to exclude it because of the lateness with which the prosecution had sought its admission.
143. In the instant case, as noted above, no notice was given prior to (or arguably even during) the trial. Ordinarily, as a matter of procedural fairness, that omission would be sufficient to exclude the evidence. However, here, Mr Tu'utafaiva did not object to the evidence being adduced.
144. Apart from one of the alleged previous incidents, involving the Accused hitting the Complainant, pulling her hair and having her take off part of her clothing, the others were scant in detail. The Prosecution led little more than the Complainant asserting that there had been more than five previous assaults. The nature of what the Accused allegedly did to the Complainant on the other occasions was barely, if at all, explored in evidence.
145. The one detailed previous assault bore some resemblance to the Complainant’s account of what occurred at the beach on 27 October 2019. However, in circumstances where the Accused admitted in evidence that he punched and slapped the Complainant on that occasion, but denied using a lug wrench, the cogency of the evidence of a previous assault, which itself did not involve the use of a lug wrench or similar object, as propensity evidence, is markedly diminished. Further, the evidence of previous assaults, such as it was, bore no similarity to the complaint of forced sodomy here. Similarly, the Complainant’s evidence of previous assaults (on her) did not include the Accused striking the Complainant with the flat of a machete blade.
146. On balance therefore, and notwithstanding the admission into evidence of the Complainant’s statements of previous assaults, I find that that evidence is of little to no weight in terms of cogency to bear upon the determination of whether the Prosecution has proven the instant offences beyond reasonable doubt.

General assessment of credit and reliability

147. I had no reason to doubt any of the evidence by Sope or Siliako. However, their evidence did not advance the real issues for determination very far.
148. Similarly, I accept Dr Tupou’s evidence in full. I am mindful though of his frank concession as to very limited experience in previous cases involving reports of forced anal sex. Dr Lalahi was not required for cross-examination notwithstanding the availability of video link facilities for remote evidence. The contents of her report therefore are accepted in full.
149. That brings me to the main protagonists in the unfortunate love triangle which has spawned this case.
150. I found the Complainant’s demeanour and manner during her evidence to be unusual. The parties and the court agreed to her request to have a screen or white board placed between the witness box and the Accused during her evidence. On the face of the summary of facts, her request was understandable and justified for it was anticipated that having to recount what she had told police and the Prosecution had happened to her would be difficult and distressing.
151. Often, in sexual abuse cases, complainants will endeavour to remain as composed as they can during their evidence in chief but when challenged in cross-examination that composure will be exhausted and emotional outbursts are common. I am mindful, of course, assuming the truth of a complaint, that every complainant is likely to have processed (or be processing) their ordeal differently, which in turn may result in different psychological and emotional outcomes, including presentation at trial.
152. However, in this case, I noticed that the Complainant’s voice was consistently shaky throughout the entirety of her evidence in chief, even in answer to formal and non-contentious questions. In contrast, throughout her cross-examination, the Complainant’s voice and manner changed distinctly. The shakiness or trembling in her voice disappeared and she was confident to the point of being strident in her answers to Mr Tu'utafaiva.
153. The Complainant’s somewhat curious affect did not end in the witness box. After her evidence was concluded, she returned to sit in the public gallery with the screen this time placed in front of her when the Accused gave evidence. During his evidence, the Complainant moved along the seat to maintain a line of sight with the Bench. I was therefore able to observe her demeanour during the remaining evidence. At one point, she had a female companion with her. On more than one occasion during the Accused’s evidence, the Complainant was smiling and laughing with her companion. She did not at all appear affected by the Accused’s evidence, rather more amused or entertained by the proceeding. When Effe gave evidence, the Complainant moved back behind the screen out of sight.
154. I will address the content of the Complainant’s evidence further below.
155. My observations of the Accused during his evidence were almost entirely at odds with the veritable monster depicted by the Complainant in her evidence. He was very calm and careful in his answers. His frank admission to punching and slapping the Complainant in his car at the beach when she confessed to texting her ex-boyfriend together with his other admissions against interest of infidelity with the Complainant and lies to his wife about same, in my assessment, made his evidence quite compelling. He remained consistent throughout his evidence, including during cross-examination. His answers to questions from the Bench, in particular, were direct, clear and had a ring of truth about them.
156. So too, I found the Accused’s wife, Effe, to be a frank and forthright witness. Notwithstanding her treatment by both the Accused and the Complainant, Effe maintained composure, clarity and consistency throughout her evidence, even when the subject matter of some questions was clearly emotionally challenging for her.
157. The Prosecution’s submission that Effe had a number of motives for lying, without specifying which one the court should find operated here, was unhelpful. Viewed as a whole, little if any of Effe’s evidence was at odds with that of the Complainant. More importantly, none of Effe’s evidence was directly relevant to the allegations of sodomy; she wasn’t present at the beach when the alleged assault with the lug wrench occurred; nor on the Complainant’s version was she present when the Accused allegedly hit her with the flat of a machete. Moreover, and notwithstanding the Complainant’s uncontradicted evidence of spending a lot of time with Effe during the relevant period, neither the Complainant nor Effe gave evidence that the Complainant told Effe about any of the assaults.
158. The Prosecution’s scepticism about Effe’s evidence that she was awake listening to the Complainant each night until 5 AM, based on Effe’s text message to the Complainant at 9:06 pm on 28 October 2019 that she had just woken up, must be viewed in context. Effe’s evidence was that each night the Complainant asked her if she could come to her room to which Effe agreed. Effe’s text message was in response to a text from the Complainant at 8:05 pm asking if she could come to Effe’s room. Whether Effe was sleeping or was studying at that time was not explored in evidence by either counsel. I have no reason to doubt Effe’s explanation that she was able to get some sleep during the days between classes or exams. It should also be recalled that the Complainant gave evidence that on the day she went with the Accused to his work, she was exhausted and ended up sleeping in his car, which is consistent with having been up the previous night.
159. Therefore, and with the possible exception of the evidence about when and for how long the Complainant spent in Effe’s room during the three nights in question, I found Effe’s evidence and that of the Accused to be sufficiently consistent to be reliable without being so identical as to suggest collusion.
160. On that last issue, I found that apart from the Sunday night, when she said she spent the night in the Accused’s room after the alleged sodomy, the Complainant’s evidence as to which room or with whom or for how long she was with either the Accused or Effe on the Monday and Tuesday nights, was unclear. Insofar as the Accused said that the Complainant slept in his room each night while Effe testified that the Complainant was in her room, I am unsure on the evidence as to when each night the Complainant went to Effe’s room. The Accused’s evidence was that he fell asleep. It was unclear as to whether the Complainant was still in his room when he fell asleep or whether she had left beforehand to go to Effe’s room. It may well be that the Accused assumed the Complainant was in his room all night because on Effe’s evidence, the Complainant left her room each morning around 5 AM when the Accused’s parents woke and went to the Accused’s room where he found her when he awoke. Ultimately, little turns on the difference. Though the Complainant said that the alleged sodomy happened soon after she arrived at the Accused’s house on the Sunday night and shortly after Effe had brought water and a towel to tend the Complainant’s facial injuries, none of the charges are alleged to have occurred during the sleeping hours over the three nights.
161. The uncertainty on that issue on the Prosecution case and my general preference for the evidence of the Accused and Effe leads to the conclusion that where their evidence differed to the Complainant’s in any material respect, the benefit of any doubt must be given to the Accused.
162. Further, I am left with doubts about the veracity and/or reliability generally of the content of the Complainant’s evidence of the offences for the following reasons:
     • (a) Her evidence about trying to end the relationship with the Accused was inconsistent and implausible. Her explanation for returning to Vava'u to get away from the Accused was at odds with the fact that she had failed two subjects in her study course which meant she could not continue (responsibility for which she obliquely tried to attribute to the Accused). It was also completely inconsistent with the fact that when he arrived, she took the Accused to his hotel, spent each day with him, had sex with him on a number of occasions and tried to present him to her father presumably for his approval. I am therefore left with the impression that the Complainant was intent on continuing the relationship at any cost including doing whatever it took to get Effe to leave the Accused for good.
     • (b) In that regard, I do not accept the Complainant’s evidence that Effe was content to remain married to the Accused and to acquiesce in the Complainant continuing as the Accused’s girlfriend in some sort of ‘open marriage’. The uncontradicted evidence that Effe separated from the Accused twice in the months and weeks leading to the subject events clearly demonstrates that she was not content for the affair to continue. I accept Effe’s evidence that she helped the Complainant with her injuries, and spent the nights listening to the Complainant talk, because while she wanted the Complainant out of her marriage, she felt some sympathy for her and the situation she was in with her own family.
     • (c) The Complainant’s evidence that, during the assault at the beach, the Accused told her to take off her bottom clothes because he was going to poke her with the lug wrench was undermined by her differing accounts to the police.
     • (d) I doubt that the Complainant went with the Accused to his house after the incident at the beach because she had no choice or that he forced the situation. Of all the places to bring the woman with whom he had been having an affair, who had just confirmed that she had been flirting with her ex-boyfriend, and whom the Accused had just assaulted, his house where he knew his wife and parents were waiting would be the last. I consider it more likely that the Complainant wanted to go to the Accused’s house because she assumed Effe was not there and it would be an opportunity to ensconce herself further into the Accused’s life.
     • (e) I have real difficulty accepting the Complainant’s evidence that the reason she went to the Accused’s house, and that she did not try to leave or escape during the ensuing three days, even when she heard her brother outside calling for her, was her fear of the Accused. Having viewed the Accused giving evidence, it is fair to say he is not a man of large physical stature. Siliako was significantly larger in that regard. The Accused was also quite mild mannered even when vigorously challenged by the Prosecutor. He gave no impression of being capable of instilling fear of the kind described by the Complainant, who herself was not petite or weakly in physical stature.
     • (f) The Complainant’s evidence of fear of the Accused is even more difficult to understand, let alone accept, when one considers the numerous opportunities she had to leave the Accused’s house and/or raise the alarm. There was no evidence of her being detained in the house. The Accused’s evidence that there was no lock on his bedroom door went unchallenged. There was no evidence that she was unable to leave Effe’s room or the house anytime during the night. There was no evidence of any physical means or threat by the Accused preventing the Complainant from leaving. As Effe said, the Complainant was ‘free as a bird’ in the house. She sat in the lounge area during part of the days when the Accused was at work watching television either by herself or with Effe. That is hardly the behaviour of a person in fear. When she went to the Accused’s workplace, again she did not drive off (if as on one version of the evidence she had the car keys) or walk away (if on the other version, she did not have the keys). Instead, she went to sleep in his car. The Complainant had her phone for some of the time she was with the Accused and Effe, yet not once did she try to call the police. On the Tuesday evening, when she returned to her house get money for the three of them to buy food, the Complainant had a clear opportunity to remain with Sope and/or raise the alarm. Yet, she left with the Accused and Effe and willingly returned to their house after eating together that night. Perhaps the most puzzling of the opportunities to leave was when Siliako came to the house and called for her. The Complainant heard him but did not go to him. The Accused was not there. There was no objective reason preventing her from going, or for not going, with her brother other than that she must have wanted to stay at the Accused’s house. She admitted to having sex with the Accused on the Wednesday morning. Her evidence that she just let the Accused have sex with her or that she was unsure whether she consented, was unconvincing. She certainly did not tell the police that the Accused had raped her on that occasion. Finally, and by her own evidence, all the Complainant had to do to return home to Sope on the Wednesday evening, after they had all been swimming, was to ask the Accused, who did so.
     • (g) The Complainant’s evidence to the court of fear of the Accused was also inconsistent with her evidence of what she repeatedly told the Accused and Effe about not wanting to go home or to Siliako’s house because she was afraid of what her family would think of her once they found out she was having a sexual relationship with a married man. In my view, that was more likely the truth.
     • (h) That last observation leads to the conclusion that the Complainant has brought these charges as an emotionally inexperienced and immature young woman who has gone to great lengths to persist with her affair with a married man. She no doubt had hopes he would divorce Effe and marry her. Once the realization set in that that was not going to happen, and after the Accused had gone into a rage and assaulted her, there is in my view a real likelihood that the Complainant was motivated to position herself as the victim in the tryst so as to avoid possibly being ostracized by her family and to garner their sympathy and support. So much was evident from the emotional displays by Sope and Siliako during their evidence. One is therefore left with a clear impression that the Complainant has acted as a spurned lover and has sought to ensure that if she cannot have the Accused, nobody will.
163. I now turn to the specific charges in further detail to explain, why in light of the above findings, the Prosecution has not proven the charges beyond reasonable doubt.

Count 1: Sodomy

164. Section 136 of the Criminal Offences Act provides:

136 Sodomy and bestiality

Whoever shall be convicted of the crime of sodomy with another person or bestiality with any animal shall be liable at the discretion of the Court to be imprisoned for any period not exceeding 10 years.

165. Contrary to the Prosecution’s opening, s.136 of the Criminal Offences Act does not require lack of consent as an element to the offence of sodomy thus stated. During the trial, Ms Kafa acknowledged the point. Whilst in other jurisdictions, the facts alleged in this count are more readily characterized as anal rape, where lack of consent is an element, such an offence does not presently exist in Tongan criminal law.
166. A further observation on a plain reading of s.136 is that it does not in fact create the crime of sodomy. It assumes it. The provision only operates to provide a penalty. There are no other provisions in the Act which define or create ‘the crime of sodomy’. I therefore recommend consideration be given to possible amendment to the Act to clarify the matter including the observations in the preceding paragraph above. Again, as this issue was not raised during the trial or in submissions, I need not dwell on it further.
167. Recent amendments to s.11 of the Evidence Act^[11] have confirmed the long held position in other common law jurisdictions, that in sexual offence cases, corroboration is not required for conviction.^[12] Conversely, it has been long recognized that it can be dangerous to convict on the uncorroborated evidence of a complainant. However, the Court may do so, of course, if satisfied beyond reasonable doubt that the complainant is telling the truth: R v Sa'ili [2020] TOSC 48.^[13] For the reasons stated above, I am not so satisfied in relation to this count.
168. The only objective or physical evidence which potentially corroborated the complaint of sodomy was Dr Tupou’s observations of the Complainant suffering anal fissures and his opinion that they were consistent with penetration with a blunt object including a penis. However, and apart from Dr Tupou having very limited experience of previous cases alleging forced anal sex, he agreed in cross-examination that, given the sensitive nature of the tissue around the anus, the fissures could also have been caused by other means including even a difficult bowel movement. The Prosecution did not lead any evidence from the Complainant to dispel that or any other possible cause of the fissures in the period between 27 October 2019 and when they were first detected on 5 November 2019.
169. As noted recently in R v Sa’ili, ibid,^[14] s.11(1) of the Evidence Act recognizes that evidence of fresh complaint may constitute corroboration, not as additional or independent evidence of the crime, but to show that a complainant’s conduct is consistent with her evidence at trial. However, a lack of recent or fresh complaint does not operate in the negative or inverse to necessarily impugn the veracity of a sexual offence complaint.
170. Here, however, the Complainant did not complain of the alleged sodomy to any of Effe, the Accused’s parents, Sope or Siliako despite clear and repeated opportunities to do so. Her evidence did little to assuage concerns about that natural expectation. Further, there is no evidence that the Complainant reported any injury or pain to her anus when she was first examined by Dr Lalahi. In that regard, I note that Dr Lalahi’s report referred to ‘emergency contraception’ being offered. It is not known whether the Complainant took that contraception. There is also no evidence as to whether the Complainant told Dr Lalahi that she also had consensual (or acquiesced to) vaginal sex with the Accused during her stay at his house or that the only non-consensual sex was anal and that therefore no contraception for that would be required.

Count 2: Common assault

171. During the trial, the Prosecution was invited to apply to amend the indictment on this count in the face of the Accused’s admission to punching and slapping the Complainant in his car. Ms Kafa declined the invitation and confirmed that the Prosecution relied solely on the evidence of the Complainant that the Accused hit her with a lug wrench as the only basis for the alleged common assault.
172. I am not satisfied that the Prosecution has proven the fact of this charge either.
173. The lug wrench was not produced in evidence nor was any photo of it tendered. There was no evidence of police investigating whether the Accused owned or possessed a lug wrench in his car or elsewhere. Neither he nor Effe were asked about that during their evidence.
174. The medical evidence was equivocal. Without photographs or more explicit descriptions of the bruises to the Complainant’s thigh, it is not possible to determine whether they were caused by a lug wrench (or ‘tyre iron’, which is commonly known to be a long straight iron bar with an ‘L’ shaped end housing the socket mechanism) or a fist.
175. I must confess to some disquiet in the necessary conclusion on this count and whether justice will be served by it. Not only was the Prosecution’s chosen course in not seeking to amend to include (singularly or in the alternative) the assault as admitted by the Accused difficult to fathom, it also appears on the current state of the relevant legislation that it is arguably not open to this court to convict the Accused of an offence by his own admission.
176. Clause 13 of the Constitution provides:

13 Charge cannot be altered

No one shall be tried on any charge but that which appears in the indictment, summons or warrant for which he is being brought to trial:

Save and except that —

...

(d) any Act may provide that a person charged with an offence may be convicted of another offence (not being a more serious offence) arising out of the same circumstances.

177. In search for such a provision within the Criminal Offences Act, s.3 provides:

3 Accused not to be convicted of offence not charged

Except where otherwise provided in this Act no person charged with an offence shall be found guilty of any other offence on the evidence submitted to the Court, if such evidence is insufficient to establish the offence with which such person is charged.

178. Here, the Accused’s admission is sufficient evidence to establish a common assault by his hands but is insufficient to establish the offence with which he was charged involving the use of a lug wrench. Arguably, and somewhat quizzically therefore, s.3 operates to prevent the Accused being found guilty of the same offence albeit based on different particulars.
179. Further, s.42(3) provides:

(3) Where on a person’s trial on indictment for any offence except treason or murder, he is found not guilty of the offence specifically charged in the indictment but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

[emphasis added]

180. This provision, too, arguably does not permit a finding of guilt on the assault which the Accused admitted because the ability to convict on another offence is confined to the allegations in the indictment, which here do not include the assault by hand. Had the section provided that if the evidence at trial discloses another offence, an Accused may be found guilty of that other offence, then here, it may have been open to find the Accused guilty of the assault he admitted.
181. Again, as neither counsel addressed this issue, I make no definitive finding about it.

Count 3: Domestic violence

182. Of the two allegations comprising this count, I have already addressed and rejected the sodomy allegations. It follows, for the same reasons, that the first of the domestic violence allegations has not been proven.
183. The second allegation relied upon, that the Accused hit the Complainant on her upper arm with a machete, suffers from many of the same shortcomings in the Prosecution case on the common assault charge.
184. Again, there was no physical evidence of the machete, nor any photographs of it. There was no evidence that the investigating police officers searched the Accused’s property to determine whether he owned or possessed a machete. The Accused was not asked that question. Effe’s evidence of the Accused hitting her with the flat of a machete was unrelated in time and circumstance to constitute sufficient evidence of the Accused using a machete on the Complainant.
185. Dr. Lalahi’s report referred to a “light bruise” to the Complainant’s left upper outer arm. The Complainant’s evidence was that she was hit on her shoulder. She was not asked to specify left or right. The Complainant gave evidence that the Accused punched her in the face, around her head and her back. It is not clear whether any of his punches may have landed on the Complainant’s upper arm or shoulder.
186. Finally, and to return to one of the initial bases for doubts about the Complainant’s account, if the Accused did hit her with the flat of the machete, but more importantly, also threatened to cut off her leg with it, one is left with even greater uncertainty about why the Complainant did not escape and/or raise the alarm during the many opportunities she had to do so.

RESULT

187. For the reasons stated, I am not satisfied that the Prosecution has proven any of the three charges beyond reasonable doubt.
188. I therefore find the Accused not guilty, and he is acquitted, on each count.
189. I order that the identity of the Complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.

NUKU’ALOFA	M.H. Whitten QC
14 September 2020	LORD CHIEF JUSTICE

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^[1] [3]
^[2] (1893) 6 R. 67, H.L.
^[3] [1975] AC 43; [1974] 3 All ER 887
^[4] [1991] 2 AC 447
^[5] Such as ss 98–113 of the Criminal Justice Act 2003 in England and Wales.
^[6] Citing Makin v A-G for New South Wales [1894] AC 57, as explained in Myers v R [2015] UKPC 40, [2016] 2 LRC 383 at [37]–[41].
^[7] Citing Makin v A-G for New South Wales [1894] AC 57, DPP v Kilbourne [1973] 1 All ER 440, DPP v Boardman [1974] 3 All ER 887 and R v P [1991] 3 All ER 337.
^[8] Which was in question in Boardman and see now R v P, supra.
^[9] [12] referring to Makin.
^[10] [55]
^[11] Evidence (Amendment) Act 2016, 5 of 2016, assent 26 March 2020, gazetted 16 June 2020.
^[12] Teisina v R [1999] Tonga LR 145 (CA)
^[13] CR 18 of 2020 (15 July 2020) referring to R v V [2018] TOSC 59; R v 'Otutoa [2018] TOSC 5.
^[14] [211]